Docket No: 6996-19 Ref: Signature date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 (b) USD memo, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” of 25 July 2018 Encl: (1) DD Form 149 w/attachment (2) Drug/Alcohol Statement of Understanding 9 Jan 1989 (3) Medical History 10 Jan 1989 (4) Enlistment Perf Record (5) NJP 13 Jun 1989 (6) Notice of ADSEP 19 June 1989 (7) Medical Care 19 Jun 1989 (8) CO Rec ADSEP 22 June 1989 (9) Approved ADSEP 29 Jun 1989 1. Pursuant to reference (a), Petitioner, a former enlisted member of Navy, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his Certificate of Release or Discharge from Active Duty (DD Form 214) be corrected by upgrading his characterization of service from under other than honorable conditions to honorable or general (under honorable conditions). 2. The Board reviewed Petitioner’s allegations of error and injustice on 7 April 2020 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosure, relevant portions of Petitioner’s naval service records, and applicable statutes, regulations, and policies. 3. The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulation within the Department of the Navy. b. Although enclosure (1) was not filed in a timely manner, it is in the interest of justice to review the application on its merits. c. On 9 January 1989, during the enlistment process, Petitioner signed the Navy’s Drug and Alcohol Abuse Statement of Understanding that drug abuse by Navy Personnel is against the law and will not be tolerated, and use of marijuana in-service may lead to administrative separation with an other than honorable discharge. See enclosure (2). d. On 10 January 1989, before commencing active duty, Petitioner’s Report of Medical History stated that Petitioner admitted to using marijuana six times in his life. See enclosure (3). e. On 23 January 1989, Petitioner began active duty. See enclosure (4). f. On 13 June 1989, Petitioner received nonjudicial punishment (NJP) for wrongful use of marijuana while on leave on or between 20 April and 19 May 1989. Petitioner was awarded forfeiture of one-half month’s pay per month for two months, 45 days restriction, and extra duties. See enclosure (5). g. On 19 June 1989, Petitioner was notified of proposed administrative discharge, by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse. Petitioner consulted with counsel and waived his right to an administrative discharge board (ADB). See enclosure (6). h. 19 June 1989, Petitioner was evaluated by a medical officer. During the evaluation, Petitioner indicated he did not recall smoking marijuana, but thought he may have smoked marijuana at his going away party, after having 14 mixed drinks. The Petitioner was not found drug or alcohol dependent. See enclosure (7). i. On 22 June 1989, Commanding Officer (CO), recommended that Petitioner be discharged with an under other than honorable (OTH) conditions characterization of service by reason of the risk associated with illegal substances onboard aircraft carriers to both the crew and flight operations. Additionally, the CO further stated that because of the availability of drugs in the , retention of Petitioner aboard forward involvement of foreign authorities. Therefore, the CO strongly recommended that Petitioner be separated with an OTH as soon as possible. See enclosure (8). j. On 29 June 1989, Petitioner was directed to be discharged with an OTH characterization of service by reason of misconduct due to drug abuse and on 26 July 1989, was so discharged. See enclosure (9). k. In Petitioner’s application, Petitioner requests an upgrade to his discharge characterization and asserts that his record is in error or unjust for the following reasons (enclosure (1)): (1) “I’d like the injustice to be corrected to something improved than an OTH. On my DD214, under Special Additional Information, #24 states that my discharge was "Under other than honorable conditions". To make that remark or judgement is inaccurate. I would much prefer my DD214 to read General to Honorable Discharge please;” (2)“I signed the line to risk my life for my country and enter the US Navy. I completed & passed Boot Camp. I completed and passed airdale School post bootcamp. My "wishlist" was completely disregarded, and was issued orders to to report to the , . There I reported for duty, completed everything I was ordered to do to the best of my ability;” (3) “I reported to medical and received the necessary injections and medical clearance to report for overseas duty. I had a short leave, reported for transportation to . I arrived and reported to my ship. I was assigned a Division to report to and quarters. I stood by and watched as my shipmates from my division on boot camp/school broke down about being homesick and being too far from home. I was enjoying the opportunity and looked forward to see what the Navy had to offer. One by one they vanished. I was the last one;” (4) “During my brief time in the US Navy, I NEVER had any performance or any behavioral issues. I had done every order/request/assignment that was ordered/required of me. I served my country well. The people who know my story whole-heartedly agree. This minor infraction has caused undue stress, worry, anxiety, and depression throughout the course of my entire life. It is something that has brought me great shame and embarrassment, and it is an injustice to continue to carry the negative stigma of what others happen to think and render judgment upon;” (5) “I was punished by being assigned extra duty, being restricted, etc. With that came all the ridicule from shipmates, superiors, being constantly made fun of, being the outcast, as well as all the other verbal and mental abuse that my supposed shipmates could come up with. It was all very demeaning and rather embarrassing. Especially to an individual who was absolutely dedicated to his service, his ship, his shipmates, and his country;” (6) “Today Marijuana is legal in at least 33 states, and the . NIDA contracts with theto grow and cultivate marijuana for research. The DEA allows growers to register with them to produce and distribute marijuana for research. NIH issued guidance on procedures for provision of medical marijuana for research. The Federal Government has research studies on the use/benefits of marijuana on veterans, particularly in regards to PTSD and other human related issues. I got railroaded for possibly smoking on leave;” (7) “Other consideration: I've been a good citizen since being discharged from the service in 1989. I married in 1993, had/raised two great children in that marriage while working (career) and going to college full time. In 1997 I attained my AA degree in Business Administration, and went on to further coursework towards a BS in Accounting at the University level. After being divorced, I had/raised three more great children. I've paid my taxes, lived by the law, done my jury duty, done what is right, because it's the right thing to do, spent decades in corporate America, and am a good law-abiding citizen,” and Petitioner’s believes clemency is warranted as it is an injustice for him to continue the negative consequences of the bad discharge he received. Petitioner’s listed the following factors for his discharge: (a)My average conduct and efficiency ratings/behavior/proficiency marks were good. (b) My ability to serve was impaired by my deprived childhood. (c)My ability to serve was impaired by family problems. (d)Personal and financial problems impaired my ability to serve. (e) Medical/physical/psychiatric problems impaired my ability to serve. (f)Certain other problems impaired my ability to serve. (g)My discharge was based on -one minor offense.” k. In Petitioner’s application, Petitioner submitted: (1) Resume dated 3 July 2019 (2) Letter from a friend dated 3 July 2019 (3)Job Recommendation dated 15 May 2002 (4)Job Letter of Commendation dated 16 April 2001 (5)Job Appraisal Letter dated 19 March 1999 (6) List of Training and Education not dated (7) Six Training Certificates completed in 1998 (8) Birth Certificates (9) Associate in Arts Degree dated May 1998 BOARD CONCLUSION The Board, in its review of Petitioner’s entire record and application, carefully weighed all potentially mitigating factors and determined that Petitioner’s request did not warrant relief. The Board considered the fact that this was an isolated incident of misconduct during Petitioner’s youth and 6 months of service. The Board noted that an honorable characterization of service is warranted whenthequalityof amember’s servicegenerallymeets thestandard of acceptable conduct and performance for Naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A general (under honorable conditions) characterization of service is warranted whenthequalityofthemember’sservicehas beenhonest and faithful but significantnegative aspects of the member’s conduct orperformanceofduty outweighed the positive aspects of the member’s service record. An OTH characterization of service is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. Here, the Board felt that due to the seriousness of Petitioner’s drug use, his knowledge of the Navy’s zerotolerancepolicy and Petitioner’s short period of service, an OTH was consistent with the characterization of discharge given others in similar circumstances. The Board concurred with the CO’s statement that the abuse of illicit substances aboard an aircraft carrier poses an intolerable risk of harm to the ship, her crew, and flight operations. The Board further agreed with the CO’s statement that the availability of drugs in the Western Pacific ports-of-call, retention of Petitioner aboard forward deployed ship also posed the risk of creating international incidents due to the possible involvement of foreign authorities. Regarding Petitioner’s contention that his “wish list” was disregarded, Petitioner’s record clearly indicates that he signed an enlistment contract that did not guarantee his first duty station. Regarding Petitioner’s contention that his NJP punishment was demeaning and embarrassing. The Board noted that nothing indicates that the punishment was inconsistent with the standards of discipline of the Uniform Code of Military Justice. Regarding Petitioner’s contention that marijuana is now legal in 33 States and the ; NIDA contracts with theto grow and cultivate marijuana for research; DEA allows growers to register with them to produce and distribute marijuana for research; NIH issued guidance on procedures for provision of medical marijuana for research; Federal Government has research studies on the use/benefits of marijuana on veterans, particularly in regards to PTSD; other human related issues; and that “I got railroaded for possibly smoking on leave.” The Board noted that the Navy’s zero tolerancepolicy on drugs was clearly understood by the Petitioner acknowledgment (enclosure (2)). The Board also noted that Petitioner’s assertion that he “got railroaded for possibly smoking on leave,” does not amount to an error or injustice, and fails to overcome the presumption of regularity that Navy officials failed in their official duties. Furthermore, the Board noted Petitioner to-date has not condoned his actions for his wrongful use of marijuana. Lastly, the Board considered Petitioner’s post service materials and considered all guidelines of reference (b), however, did not conclude that an upgrade on the basis of clemency was warranted. In view of the above, the Board directs the following corrective action. BOARD RECOMMENDATION Deny relief. EXECUTIVE DIRECTOR’S CONCLUSION Notwithstanding the Board’s conclusion, I believe to the contrary, the Petitioner’s discharge was too hash given the Petitioner’s age and limited time in service. Petitioner’s command failed to recognize that this was an isolated incident during Petitioner’s six months of service. In accordance with reference (b), Petitioner’s discharge warrants relief. Reference (b) specifically mentions that while marijuana use is illegal in the military many states have legalized it and that fact can be considered mitigating evidence. It is also important to note that the Petitioner’s isolated marijuana use was while he was on leave away from his ship and shipmates. Additionally, many of the factors that reference (b) enumerates weigh heavily in favor or granting the Petitioner relief. During his short six months in service Petitioner’s marks for reliability, military bearing and his overall trait marks were 3.6 which demonstrates that he was valued unit member. Petitioner’s post-service conduct as evidenced by his character references, job history, family history, meritorious service in his civilian jobs, and Associates degree demonstrates that he has become a valuable member of society in the years since his discharge. Petitioner has had an OTH on his record for 31 years for one instance of non-violent misconduct, a youthful indiscretion. Petitioner’s characterization of service should be changed to a general (under honorable conditions). A characterization that is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects ofthemember’s service record. EXECUTIVE DIRECTOR RECOMMENDATION That Petitioner be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty to show he was discharged with a general (under honorable conditions) characterization of service. That a copy of this report of proceedings be filed in Petitioner’s naval record. That, upon request, the Department of Veterans Affairs be informed that Petitioner’s application was received by the Board on 18 July 2019. 4. It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above-entitled matter. 5. The foregoing action of the Board is submitted for your review and action.